In Depth

What if 1976 hadn’t played out the way it did, and some of the jurists on the U.S. Supreme Court had held the view
of capital punishment at that juncture that they did at the end of their judicial careers?

The death penalty may never have been reinstated.

That changing judicial perspective is making its mark on the continued evolution of the death penalty debate.

Stevens

“This has all been a long experiment since the death penalty came back, and we’re all still working it out,”
said Richard Dieter, executive director of the non-profit Death Penalty Information Center in Washington, D.C., that studies
capital punishment. “Even if it’s theoretically constitutional and you get past the moral questions, many are
seeing that in practice through the years (this system) lacks protections or predictability and just isn’t worth it.”

One of the most visible examples of this judicial change of heart comes from Justice John Paul Stevens, who hails from the
7th Circuit and retired from the Supreme Court of the United States in 2010 after 35 years. In 1976, after six months on the
bench, Justice Stevens voted to bring back the death penalty because of what he saw as “a promise” of evenhanded
justice and careful consideration of that penalty.

The case was Gregg v. Georgia, 428 U.S. 153, 206-07 (1976), one of five companion cases that was at the time considered
the test for whether the death penalty could be reinstated nationwide following a 1972 5-4 ruling that had struck it down.
Many states, including Indiana, had revised state laws concerning capital punishment, and Justice Stevens and six of his colleagues
voted that the death penalty was constitutional with the right procedures and narrow, equitable application.

But 32 years and more than 1,000 executions later, Justice Stevens reversed course. Now retired, he says that he regrets
his vote in Gregg and would have made a different decision if he knew what was ahead.

In the 2008 Kentucky lethal injection case of Baze v. Rees, 553 U.S. 35 (2008), Justice Stevens concurred with the
use of lethal injection but wrote separately to explain his overall concerns with the death penalty. He wrote that the case
questioned the justification for the penalty itself, and he stressed concerns about the process that often relies on emotion
and ends with inconsistent result.

“I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents
‘the pointless and needless extinction of life with only marginal contributions to any discernible social or public
purposes,’” Justice Stevens wrote. “A penalty with such negligible returns to the state (is) patently excessive
and cruel and unusual punishment violative of the Eighth Amendment.”

Following his retirement, Justice Stevens explained further his rationale and the historic perspective behind his change
of heart. He wrote an essay that appeared in the “New York Review of Books,” reviewing a law professor’s
book on capital punishment and explaining his reasoning.

He wrote that personnel changes on the court and “regrettable judicial activism” that chipped away at the foundation
of the 1976 rulings were significant reasons for his shift, and that in his time on the bench the capital punishment system
has become error-ridden, skewed toward conviction, and weighed down by political concerns of those involved in the decision-making
on death. He wrote about how elections affect decisions of state prosecutors and judges who impose it, and said there has
been a tilting of the playing field toward conviction because prosecutors often exclude jurors with qualms about the death
penalty.

In the essay, Justice Stevens wrote that legislative imposition of death eligibility must be rooted in benefits for at least
one of five classes affected by capital offenses – victims, survivors, legal community participants such as attorneys
and judges, the general public, and the accused who would ultimately be condemned. The system doesn’t provide adequate
justification for those parties, except for the survivors, but that can’t be taken alone, he wrote.

Justice Stevens joins other former justices whose views have altered since their time on the court. Former Justices Lewis
F. Powell and Harry Blackmun, who retired in 1987 and 1994 respectively, switched their views and completely repudiated capital
punishment, while Justice Stevens had continued to uphold those sentences when he believed that the court’s precedents
led to that conclusion.

All three were part of the 7-2 majority reinstating the death penalty in 1977.

Stevens

“Over their years on the court, they begin to see how the system often fails to provide even minimal due process,”
Dieter said. “Although they may not feel empowered to overturn the death penalty until there is a national consensus
against it, they recognize they can at least improve the justice system by requiring better representation, demanding unbiased
jury selection, and explaining to judges what the law is.”

Statewide judicial view

From the Indiana Supreme Court perspective, former Justice Theodore Boehm, who left the bench in September 2010, doesn’t
go into how his personal views changed over time but says as a judge he tried to be as consistent as possible in every death
penalty case before him.

“As a judge, this is a legislative matter to decide on whether we should have it or not,” he said. “If
it’s in place and constitutional, then it’s our job to administer – whether one thinks it’s wise or
not.”

Clues about the five justices’ own judicial philosophies can be found in the published writings and rulings they’ve
made through the years. The two most often aligned in dissenting on death and vocal about their views on the capital punishment
system have been Justices Boehm and Robert Rucker.

No death penalty case has been decided by the Indiana Supreme Court since Justice Boehm retired Sept. 30 and Justice Steven
David joined the bench. Justice David, a former Boone Circuit judge, has a unique perspective on death penalty cases. In his
previous work as a judge advocate general, he served as the Office of Military Commissions’ chief defense counsel who
attended American Bar Association death penalty training courses and helped build teams of military defense attorneys to handle
complicated capital cases.

In May 2005, he presided over the case of Zolo Agona Azania, convicted in 1982 for murdering a Gary police officer. His death
sentence had been overturned twice. The case went back for a third sentencing and then-Special Judge David ruled that too
much time had lapsed and deprived the man of his constitutional rights, and he barred prosecutors from seeking a death sentence
again.

According to the judge, “Fundamental principles of fairness, due process, and speedy justice warrant this court prohibiting
the state to seek the death penalty against this Defendant in this case under these circumstances.”

The Indiana Supreme Court reversed that ruling in 2007, with Justices Rucker and Boehm dissenting. The case went back for
a new trial, but a year later a plea agreement emerged that resulted in a largely suspended 44-year sentence for murder and
robbery – meaning after time served Azania could be released by 2015.

Attorneys and judges who watch the capital punishment system say they are interested in seeing how the state Supreme Court’s
newest addition impacts its death penalty decisions. But fewer filings and subsequent appeals mean the court has less opportunity
to provide that guidance.

On the national stage, Dieter says costs of this system are contributing to the gradual execution of the death sentence.

“As former Justice Marshall predicted, the more people and fellow justices who learn about how it works in practice,
the more likely they are to oppose it,” he said. “If it weren’t for the perceived political advantage to
supporting the death penalty, it would probably be gone by now.”•

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